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Black v. State

Supreme Court of Wyoming

November 17, 2017

JOSHUA ROY DELBERT BLACK, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Teton County The Honorable Timothy C. Day, Judge

          Office of the State Public Defender: Diane M. Lozano, State Public Defender; Patricia L. Bennett [*], Appellate Counsel. Argument by Ms. Bennett.

          Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Harper, Assistant Attorney General; Becket B. Hinckley, Special Assistant Attorney General. Argument by Mr. Hinckley.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          BURKE, CHIEF JUSTICE

         [¶1] Appellant, Joshua Roy Delbert Black, challenges his conviction for aggravated assault, in violation of Wyo. Stat. Ann. § 6-2-502(a)(i).[1] He contends he was denied a fair trial as a result of prosecutorial misconduct. He also claims that his due process rights were violated because he was required to wear a leg restraint during trial. We find that prosecutorial misconduct occurred when the State failed to comply with the district court's discovery order and when the prosecutor made improper comments during closing argument. We also find that the district court abused its discretion in requiring Appellant to wear a leg restraint at trial without conducting a hearing to evaluate the necessity for the restraint. The cumulative impact of those errors deprived Appellant of a fair trial. Accordingly, we reverse and remand for a new trial.

         ISSUES

         [¶2] Appellant presents the following issues:

1. Did the prosecutor commit misconduct when he failed to comply with the court's discovery order?
2. Did the trial court abuse its discretion when it denied Appellant's motion to restrict witness testimony?
3. Did prosecutorial misconduct occur during trial?
4. Was Appellant denied due process of law when he was restrained during trial without an appropriate hearing to determine if restraints were necessary?
5. Was Appellant deprived of a fair trial due to the cumulative impact of the alleged errors?

         FACTS

         [¶3] Appellant and Kelli Windsor[2] began dating in California in June 2014. In July, Ms. Windsor moved to Jackson, Wyoming to work as a horse-trainer and riding instructor for the children of Jake and Patricia Nichols. The relationship continued after the move and, in October, Appellant moved to Wyoming to live with Ms. Windsor. They had lived together for a week before the incident at issue in this case occurred.

         [¶4] On the night of October 26, Ms. Windsor received significant injuries to her head and face.[3] She claimed her injuries were caused when she was attacked by Appellant in their residence. Ms. Windsor did not report the incident to police.[4] She did, however, take pictures and videos of her injuries with her cell phone. Later that evening, she sent text messages to Molly Hufford, nanny for the Nichols children. She provided pictures of her injuries along with the statement: "What Josh did to me tonight so there's witnesses. I can't come in tomorrow." In addition to sending the pictures to Ms. Hufford, Ms. Windsor sent text messages and photos to Appellant and Appellant's friend. Those messages also indicated that Appellant had caused Ms. Windsor's injuries.

         [¶5] Ms. Hufford did not see the message until the next morning when she was at the Nichols residence. When she saw the message, she notified her employers. Mr. Nichols went to the residence, and Mrs. Nichols notified the police. When he arrived at the residence, Mr. Nichols found Appellant and Ms. Windsor sleeping in the bedroom and the apartment in disarray. He observed broken furnishings and overturned furniture. Law enforcement arrived a short time later and detained Appellant. Ms. Windsor was transported to the emergency room.

         [¶6] Appellant was arrested and charged with one count of aggravated assault causing serious bodily injury in violation of Wyo. Stat. Ann. § 6-2-502(a)(i) (LexisNexis 2013). The Information also contained a "Notice of Enhanced Penalties" and alleged that Appellant was a habitual criminal under Wyo. Stat. Ann. § 6-10-201(a)(ii) with three prior felony convictions. Trial was initially scheduled for April 21, 2015 but was continued and rescheduled to June 22, 2015 at the request of the State. It was subsequently rescheduled to September 28, 2015 at the request of Appellant after his original defense counsel withdrew and the Public Defender's office was appointed to represent him. New defense counsel filed several discovery motions, including a "Motion to Compel the Discovery of Facebook and Cell Phone Records."

         [¶7] The motion to compel was filed on July 8 and alleged:

[I]t is known that [Ms. Windsor] sent various pictures, text messages, and information prior to, during, and after the alleged event. This evidence may go directly to [Ms. Windsor's] credibility as to her expected testimony; she is the State's most important witness in this case. . . . It is believed that some of these records were deleted by [Ms. Windsor] or others[.] [O]btaining records from [Ms. Windsor] is not sufficient and may be inaccurate.

         The motion also alleged that:

It is believed that it is much easier and more convenient for the State to obtain these requested records than the Defendant. It is known, in fact, that such a request for Facebook to provide records is made frequently by law enforcement in Teton County, Wyoming. See Records Request at www.facebook.com/records/login (stating that "If you are a law enforcement agent who is authorized to gather evidence in connection with an official investigation, you may request records from Facebook through this system."). Whereas, it is unduly cumbersome and costly, both in time and resources for the Office of the State Public Defender to obtain these records via court subpoena, or subpoena duces tecum, and the required modes of providing notice and service.

         The motion requested Facebook and Verizon records from June 1, 2014 through November 30, 2014.

         [¶8] A hearing on the motion was held on August 7. At the hearing, the prosecutor advised the court that the State had no objection to the motion. The court granted the motion and entered an order providing that the "State shall exercise due diligence to obtain the requested information and shall promptly request the information from Facebook and Verizon Wireless and provide it to Defendant's counsel."

         [¶9] The State subsequently provided an extraction record of text messages from one of Ms. Windsor's cell phones indicating that some messages had been deleted. However, the State did not attempt to contact Verizon or Facebook at any time following the court's order. As a result, on August 28, 2015, Appellant filed a "Motion to Restrict Witness Testimony for Failure to Comply with Discovery and Court Order." In the motion, Appellant sought to exclude the testimony of Ms. Windsor and all law enforcement officers as a sanction for the State's failure to comply with the discovery order.

         [¶10] The motion was addressed at a pretrial conference held on September 14 and at a subsequent hearing held on September 16. Following the hearings, the district court entered an order denying the motion for sanctions. In the order, the court stated that it would entertain a defense motion for a continuance and would expedite a new trial setting if Appellant wished to attempt to obtain the information by other means. The defense did not seek a continuance.

         [¶11] Appellant also filed a pretrial motion to appear at trial in plain clothes and without restraints. In response, the State advised the court that it had no objection to the motion. The district court granted the motion in part. It ruled that Appellant could appear at trial in plain clothes but indicated that it would reserve a decision on whether Appellant should be restrained in the courtroom until it had an opportunity to hear from the Teton County Sheriff's Office. No additional pretrial hearing on the issue of restraints occurred, and Appellant was required to wear a leg restraint during trial.

         [¶12] After a five-day jury trial, Appellant was found guilty of aggravated assault under Wyo. Stat. Ann. § 6-2-502(a)(i). The jury also found Appellant to be a habitual criminal under Wyo. Stat. Ann. § 6-10-201(a)(ii). The district court sentenced Appellant to life in prison. This appeal followed. Additional facts will be presented as necessary in the discussion below.

         DISCUSSION

         I. Prosecutorial Misconduct

         [¶13] Appellant alleges that the prosecutor committed misconduct by failing to comply with the district court's discovery order and by making improper statements and arguments during trial. The State concedes some instances of prosecutorial misconduct but asserts that the misconduct did not prejudice Appellant. We review allegations of prosecutorial misconduct under the plain error standard if there has been no objection at trial. Carroll v. State, 2015 WY 87, ¶ 31, 352 P.3d 251, 259 (Wyo. 2015). Where there has been an objection below, claims of prosecutorial misconduct are reviewed under a harmless error standard.

Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error . . . affected the accused's "substantial rights." The accused's right to a fair trial is a substantial right. Wyo. Const. art. 1, §§ 6, 9, and 10; and see, e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo. 1978). Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused.

McGinn v. State, 2015 WY 140, ¶ 13, 361 P.3d 295, 299 (Wyo. 2015) (quoting White v. State, 2003 WY 163, ¶ 7, 80 P.3d 642, 646 (Wyo. 2003)). "To demonstrate harmful error, the defendant must show prejudice under 'circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play.'" McGinn, ¶ 13, 361 P.3d at 299 (quoting Phillips v. State, 2007 WY 25, ¶ 8, 151 P.3d 1131, 1134 (Wyo. 2007)).

         A. Pretrial Misconduct

         [¶14] In his first issue, Appellant claims prosecutorial misconduct occurred when the prosecutor failed to comply with the district court's order compelling the State to exercise due diligence to obtain the Verizon and Facebook records requested by Appellant. The State concedes that the prosecutor failed to comply with the order and that the prosecutor made no attempt to contact Verizon or Facebook to obtain the records sought by the defense. The State asserts, however, that no misconduct occurred because the court's order was "improper." According to the State, "If the State was improperly required to provide the information, its failure to do so cannot amount to prosecutorial misconduct requiring reversal."[5] There are several troubling aspects to this claim.

         [¶15] First, the State offers no authority for its contention that it does not have to comply with a discovery order if it believes the order was improperly entered. There is, however, authority to the contrary. See 4 Wharton's Criminal Law § 618 (15th ed.) ("[T]he fact that an order is erroneous or irregular is no excuse for its being disobeyed."), and cases cited therein. Second, the State fails to acknowledge the undisputed fact that the prosecutor did not object to Appellant's discovery motion. During the hearing on the original discovery motion, the prosecutor told the court that the State had no objections to the motion. He added, "We'll just give them what we can and give it to counsel. It makes sense, it's that simple." The district court relied on that representation. In the court's "Order on Motion to Restrict Witness Testimony" it stated: "In an Order on Pretrial Motions entered August 12, 2015, and on the basis that the motion was unopposed by the State, the Court granted Defendant's motion to compel." (Emphasis added.) And finally, this issue was not raised below. As a general rule, we will not consider claims raised for the first time on appeal. Davis v. City of Cheyenne, 2004 WY 43, ¶¶ 25-27, 88 P.3d 481, 489-90 (Wyo. 2004). We recognize only two exceptions to that rule: when the issue raises jurisdictional questions or it is of such a fundamental nature that it must be considered. Id. "This court has taken a dim view of a litigant trying a case on one theory and appealing it on another. . . . Parties are bound by the theories they advanced below." Id. (quoting WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo. 1998)). The issue raised by the State does not present a jurisdictional question and it is not of such a fundamental nature that it must be considered. We will not consider it further.

         [¶16] At the hearing on the discovery motion, the district court asked the prosecutor: "So you're going to attempt to comply with that request to the extent that it's reasonably possible to do so?" The prosecutor replied: "Absolutely." The district court's order on discovery was explicit: "The State shall exercise due diligence to obtain the requested information and shall promptly request the information from Facebook and Verizon Wireless and provide it to Defendant's counsel." Despite the clear language of the order, the State never contacted Verizon or Facebook to obtain the records. The State offers no justification for that failure. There is indication in the record that it would not have been difficult for the State to make that request.

         [¶17] One of the exhibits in support of the motion for sanctions was an email from the prosecutor to defense counsel. The email contained a Facebook policy for addressing record requests from law enforcement. According to the policy, law enforcement "may expeditiously submit formal preservation requests through the Law Enforcement Online Request System at facebook.com/records, or by email . . . ." Once the request is received, according to the policy, Facebook "will search for and disclose data that is specified with particularity in an appropriate form of legal process and which we are reasonably able to locate and retrieve."

         [¶18] Additionally, during the hearing on the motion for sanctions, the State presented the testimony of Special Agent Jim Bonich of the FBI, who described the process for obtaining information from Facebook. Agent Bonich testified that he assists the prosecutor and law enforcement in Teton County "as I'm able when I'm requested." According to Agent Bonich, Facebook requires a preservation request "to maintain content and other information from being deleted." Agent Bonich testified that he had made preservation requests to Facebook in the past, that he had always received a response to those requests, and that Facebook had never denied any of those requests. Agent Bonich testified that he discussed the case with the prosecutor; however, he did not contact Facebook in this case because he was never asked to do so by the prosecutor. Similarly, the Teton County Sheriff testified that the prosecutor never informed him of the existence of the court's order.

         [¶19] Defense counsel summed up the importance of the requested information in response to a question from the court during the hearing on the motion for sanctions:

THE COURT: So what would you expect to be produced that would be enlightening?
[DEFENSE COUNSEL]: . . . This is a couple, particularly [Ms. Windsor], she documented everything. This is a woman who posted and texted and selfied constantly.
There's discrepancies in her timeline that night of where she was. And since October the State has known that she's documented her whereabouts and used that phone and information from Facebook posts to help her reconstruct her timeline and story and now that's not being turned over to the [defense].
THE COURT: What evidence is there of discrepancies of where she was?
[DEFENSE COUNSEL]: For example, she says she was at Teton Village that night. I don't have any information that she actually was at Teton Village that night. . . . [T]hey are using that as where she was out and about. There is information that she left the night of the assault and that she was at least in her car and she hit a bear trash can backing into it the night of the assault.
Her whereabouts on where these things happened are important to her entire credibility on how she even remembers where she was. She used her phone and her postings to tell law enforcement, to jog her own memory to tell them what had happened that night. To tell them her story was that she was at the residence and she had been assaulted by Mr. Black.
And I can't verify when she left and went to Teton Village in particular or who she was with when she did it because that information is missing, except for it being written in a law enforcement report and talked about in the interviews.
THE COURT: Okay.

         [¶20] The State contends that Appellant cannot demonstrate prejudice because he "cannot assert with any certainty that the information that may have been contained on Ms. Windsor's Facebook page or in her Verizon Wireless phone records would have been exculpatory such that it would have changed the character of the jury's verdict." Typically, there would be merit in the State's argument. In this case, however, it is undermined by the fact that it was the State's obligation, under the court order, to obtain the information. The State also claims that Appellant was not prejudiced because he could have requested the information from Facebook and Verizon. That contention was addressed by the district court. Although the district court denied the motion to restrict witness testimony, it did not find that Appellant was not prejudiced by the State's failure to perform. As stated in the court's order denying sanctions: "While Defendant could have requested the discovery itself from Facebook and Verizon, presumably Defendant did not make those requests because it justifiably relied on the Court's Order that the State would obtain the requested information." The order denying sanctions was entered ten days prior to trial. By then, Appellant had been in custody for more than ten months. Under the circumstances, his decision not to seek a continuance should not be deemed a waiver of the claimed error.

         [¶21] We have previously indicated that failure to comply with a discovery order should not be tolerated. In another case addressing the State's failure to provide discovery in a criminal case, we stated that, "The failure to comply with a discovery order is to be deplored." State v. Naple, 2006 WY 125, ¶ 29, 143 P.3d 358, 367 (Wyo. 2006) (quoting Lindsey v. State, 725 P.2d 649, 655 (Wyo. 1986)). We find the prosecutor's failure to comply with the order constitutes misconduct.[6]

         B. Denial of Appellant's Motion to Restrict Witness Testimony

         [¶22] As noted above, Appellant sought an order "restricting the Teton County Sheriff's Department and [Ms. Windsor] from testifying" as a result of the prosecutor's failure to comply with the discovery order. The district court denied the motion but indicated that it would "entertain a motion for a continuance" so that Appellant could "seek the discovery information directly." Appellant challenges that decision in this appeal.

         [¶23] We review the district court's decision for an abuse of discretion:

A trial court has discretion in determining the proper sanction for a party's violation of its discovery responsibilities. Lawson v. State, 994 P.2d 943, 946 (Wyo. 2000); Lindsey v. State, 725 P.2d 649, 655 (Wyo. 1986). "The decision of the court in addressing the breach of a discovery order will be set aside only for an abuse of discretion." Lindsey, 725 P.2d at 655. In determining whether the trial court abused its discretion, "the ultimate issue is whether or not the court could reasonably conclude as it did." Lawson, 994 P.2d at 947.

Naple, ¶ 8, 143 P.3d at 360-61.[7] In determining the appropriate sanction for the State's failure to comply with the discovery order, the district court evaluated the three factors identified in Naple, ¶ 12, 143 P.3d at 362. Those factors are (1) the reasons the State delayed producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the government's delay; and (3) the feasibility of curing the prejudice with a continuance. In Naple, ¶ 13, 143 P.3d at 362, we emphasized that dismissal should only be granted under extraordinary circumstances.

         [¶24] After applying the factors set forth in Naple, the district court determined that the State's case was largely dependent on the testimony of Ms. Windsor and that granting the motion would "eviscerate the State's case." Ordinarily, we would find no abuse of discretion in the district court's decision not to impose the requested sanction. In this case, however, we find the court's decision was based on the unsupportable premise that the State acted in good faith when it failed to comply with the discovery order.

         [¶25] In applying the Naple factors, the district court found that the State "tried to enlist the help of law enforcement to comply with the discovery order." The court then concluded that the State had "complied with the spirit of the Court's Order, if not the letter of it." There is no factual support in this record for that conclusion. The State was ordered to "exercise due diligence to obtain the requested information and [to] promptly request the information from Facebook and Verizon Wireless and provide it to Defendant's counsel." It is undisputed that the State never obtained the requested information and, more significantly, never made any attempt to obtain the information. When asked on direct examination about his conversation with the prosecutor, Sheriff Whalen testified that the prosecutor had not informed him that the court had issued the discovery order. He stated "I don't know that I received - I didn't see any order. I [didn't] know that I was under any order by the Court." (Emphasis added.) Similarly, Agent Bonich stated that the prosecutor did not ask him to contact Facebook in this case. Agent Bonich stated, however, that he had made preservation requests to Facebook in the past and had always received a response, and that Facebook had never denied any of his preservation requests. Sergeant Stanyon gave ...


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